|Lady and Lord Howard|
At Wimbledon Magistrates’ Court on the 1st December 2016, Lord Howard was convicted of failing to identify the driver of a car belonging to him, which was seen speeding. Lord Howard is a Queens Counsel and former leader of the Conservative Party. He served as Home Secretary under John Major and frequently clashed with judges. One decision made by Lord Howard to set a minimum 15-year tariff to the life sentence imposed on the 10-year-old killers of James Bulger was described by a retired senior appeal judge, Lord Donaldson, as “institutionalised vengeance by a politician playing to the gallery”.
The former party leader’s car was seen travelling at 37mph on a road with a 30mph speed limit. A section 172 notice was sent to his home, presumably with a notice of intended prosecution, and Lord Howard replied saying he could not recall who was driving. He identified the other person who might have been behind the wheel simply as “my wife”.
Section 172 of the Road Traffic Act is a well-known provision and many drivers will have received a “section 172 notice” requiring them to name the driver on a particular day and time. The Act requires the keeper of the vehicle to “give such information as to the identity of the driver as he may be required to give by” the police. It also requires “any other person” to provide “any information which it is in power to give and may lead to the identification of the driver.” They are most commonly sent out for speeding offences, but are occasionally used by astute police officers to side-step suspects in drink driving cases who decide to remain silent so as not to identify themselves as the driver. If the police cannot prove a person was driving, they cannot secure a conviction for drink driving. Often, the only evidence of driving comes from comments made by suspects themselves, therefore a refusal to answer questions can throw a prosecution into doubt. Officers will sometimes issue a s. 172 notice to force the person to disclose whether they were driving or not. Since the offence carries a discretionary disqualification, a court could decide to disqualify the person if they refuse to comply often making it pointless to exercise the right to silence in interview.
Failure to comply with a s. 172 notice carries a fine of up to £1,000 plus six-penalty-points. Like most driving offences, the court can always choose to impose a disqualification if they feel one is justified.
Section 172(4) of the Road Traffic Act 1988 tells us that a driver is not guilty if “… he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was”. It should be noted that “reasonable diligence” is a much stricter test than simply having a think about it then throwing your hands up in despair and saying “this is impossible”. It is necessary to make an effort to discover the information if you do not know it. In Marshall v CPS, the Divisional Court suggested that drivers who cannot remember which of the husband or wife was driving should go through the chronology and manner of the driving on the night in question to work out the answer. Mr Justice Parker in that case suggested that Mrs Marshall and her husband may have worked out who was driving thus:
“… The following questions could have diligently explored: at what time did she leave 16 Sloane Street, arrive at Nevern Place and return to Sloane Street to leave for Richmond? The distance from Sloane Street westward along the Cromwell Road to Kenway Road can be ascertained and the duration of the relatively short journey at night reasonably estimated.
42. On the first working assumption that she herself had been driving at the time of the alleged offence she could have sought to work out the approximate time that she must have left 16 Sloane Street, reached Nevern Place close to Kenway Road and then returned to Sloane Street to leave for Richmond.
43. If, on the other hand, Mr Marshall had been driving at the time of the offence the relevant chronologically, whatever it might exactly have been, must have been significantly different. Mr Marshall must on that working assumption have left Sloane Street on the first occasion considerably earlier, allowing her initially to drive Adele to Nevern Place, drop Adele off at the residence, return to Sloane Street to collect Mr Marshall before setting off on the final journey to Richmond. The final journey to Richmond must then have been considerably earlier.”
What I think His Lordship is trying to say is that when you think about who was driving you need to do more than just think about it, but actually take some steps to try and piece together the information and work out the answer based on the facts you do know.
Lord Howard told the court that he had been away on holiday with his wife when the notice arrived so he did not receive it until three-weeks after the alleged speeding offence. By that time the events were no longer fresh in Lord Howard’s memory and he told the court, “I tried as hard as I could to remember who was driving. It was almost a month before. I simply couldn't remember.”
Upon receiving the section 172 notice, Lord Howard did respond telling the police that it could have been him or his wife who was driving but that he had no idea which of them was behind the wheel at the time of the speeding offence.
District Judge Barnes told Lord Howard that this wasn’t good enough saying that, “[a]t no stage did the defendant provide the particulars of his wife in his letter. To simply refer to his 'wife' does not provide sufficient information.”
After hearing evidence from both Lord and Lady Howard, DJ Barnes concluded that their evidence had been “credible”, which is judge for “the witness is probably telling the truth”. The DJ convicted him anyway saying, “[t]he defendant did speak to his wife to try and remember who was driving. They did rack their brains… At no stage did the defendant provide the particulars of his wife in his letter. To simply refer to his 'wife' does not provide sufficient information… The reasonable diligence has not been made out and I'm not in a position to give any credit since there was no plea of guilty."
Given the judge’s use of the phrase “They did rack their brains,” I would suggest that she felt the Howard’s had done all that could be asked of them to remember, as per Marshall v CPS, and that they genuinely did not know who was driving. It would appear then that the conviction is on the technical basis that Lord Howard did not give the name and address of his wife when completing the form.
Lord Howard has said that he intends to appeal the conviction. He may choose to go to the Crown Court for a complete rehearing or to case state the district judge to clarify whether the information he provided was sufficient or not.
I would question whether the words, “my wife” are insufficient. Lord Howard is married to only one person, a woman named Sandra Howard, so those two words can relate to only one person in the entire world; had he written “Sandra Howard” how would we know if he meant his wife or the Vice Minister of Tourism in Colombia, for example?
There is also an argument to be had as to whether Lord Howard should be convicted of failing to name the driver when it is accepted that he did not know who the driver was. The purpose of section 172 is to give the police a way of tracing drivers and to that end it punishes those withholding information from the police. Section 172(4), gives a defence because Parliament recognises that it would be unjust to convict people who genuinely cannot provide the required information. In those circumstances, it seems unjust to convict somebody for failing to spell out the name of his wife when the court is already aware that the lady in question does not have the information sought by the police and has, in fact, come to court to give evidence.